Safoora K.P. v. State of Kerala and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **THURSDAY, THE 28TH DAY OF JUNE 2018 / 7TH ASHADHA, 1940 WP(C).No. 21327 of 2018** ## **PETITIONER(S)** **------------** **SAFOORA.K.P, AGED 36 YEARS, W/O.MUSTHAFA K, KUNNUPURATH PUTHIYA PURAYIL HOUSE, KURUMATHUR P.O., TALIPARAMBA TALUK,KANNUR-670 142.** **BY ADV.SRI.P.B.AJOY** ## **RESPONDENT(S):** **-------------** **1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF REVENUE, 4TH FLOOR, SOUTH BLOCK, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** ## **2. THE DISTRICT COLLECTOR,** **KANNUR DISTRICT, COLLECTORATE, KANNUR-670 002.** ## **3. THE TALUK LAND BOARD,** - **(TBA) REPRESENTED BY ITS CHAIRMAN & DEPUTY COLLECTOR (LA),KANNUR-670 002.** **4. THE SUB REGISTRAR, TALIPARAMBA-670 141.** **5. THE TAHSILDAR, TALIPARAMBA, KANNUR DISTRICT-670 141.** **BY SENIOR GOVERNMENT PLEADER SRI.SAIJI JACOB PALATTY** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 21327 of 2018 (M) --------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **----------------------EXT.P1 TRUE COPY OF THE SALE DEED BEARING NO.3504/1/2015 DATED 08.10.2015 OF THE PROPERTY PURCHASED BY THE PETITIONER. EXT.P2 TRUE COPY OF THE LAND TAX RECEIPT BEARING O NO.2347251 DATED 20.04.2017. EXT.P3 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN WPC NO.5708/2018 DATED 21.02.2018. EXT.P4 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN WPC NO.11722/2018 DATED 04.04.2018. EXT.P5 TRUE COPY OF THE JUDGMENT OF THE HONOURABLE HIGH COURT OF KERALA IN WPC NO.41077/2017 DATED 21.12.2017.** **RESPONDENT(S)'EXHIBITS - NIL -----------------------------** **/TRUE COPY/** **PS TO JUDGE TS 12.07.2018** ## **(C.R)** **ALEXANDER THOMAS, J.** ================== W.P.(C).No. 21327 of 2018 ================== Dated this the 28[th] day of June, 2018 ## **J U D G M E N T** According to the petitioner, she is having ownership and possession of 4.86 Ares of landed property covered by Ext.P-1 registered sale deed No.3504/1/2015 dated 8.10.2015 of SRO, Taliparamba. That mutations have also been effected in the name of the petitioner as evidenced by Ext.P-2. That land tax has also been collected from the petitioner as per Ext.P-2. It is further stated that years back, transfer of about 439.74 Ares of property including the property now owned by the petitioner, was kept in abeyance by respondents 1 to 3 purportedly under the provisions of the Kerala Land Reforms Act, 1963 (KLR Act). However, subsequently the 3[rd] respondent (Taluk Land Board) had permitted piecemeal transactions with respect to those properties through an order in TLB/2/92/TBA dated 30.11.1994. It is under the benefit of such orders that the petitioner had purchased the properties covered by Ext.P-1 sale deed, it is averred. The grievance of the petitioner is that now the 4[th] respondent Sub Registrar, Taliparamba, is refusing to register the sale deed with respect to the properties referred to above W.P.(C)21327/18 - : 2 :- and consequently, the petitioner is unable to sell the property covered by Ext.P-1 sale deed. The petitioner would point out that in identical situations, this Court had issued directions in the matter of registration of such properties, as evident from Exts.P-3, P-4 and P-5 judgments of this Court in W.P.(C).No.5708/2018, W.P.(C).No. 11722/2018 and W.P.(C).No. 41077/2017 respectively. The petitioner would place reliance on the judgment of the Division Bench of this Court in _**Selvam v. State of Kerala**_ , reported in 2010(1) KLT 508, wherein this Court has held that, going by the provisions contained in the Registration Act and the Rules framed thereunder, no embargo or interdiction can be placed by the Revenue officials on registering officers, etc. It is in the light of these aspects that the petitioner has filed the instant Writ Petition (Civil) with the following prayers: - _“i) Issue a writ of Mandamus or order directing the 4[th] respondent to accept the sale deed for registration as and when it is submitted by the petitioner for registration._ - _ii) Issue such other orders as this Honourable Court may consider necessary in the facts and circumstances of the case.”_ 2. Heard Sri.P.B.Ajoy, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the official respondents. 3. This Court in similar situation has interfered in the matter for redressal of the grievances of the petitioner therein as in the W.P.(C)21327/18 - : 3 :- instant case, as can be seen from Exts.P3 to P-5 judgments. Ext.P-3 judgment dated 21.2.2018 in W.P.(C).No.5708/2018 reads as follows: _“The petitioners have approached this Court seeking for a direction to the fourth respondent to register the sale deeds in respect of the properties covered by Exhibits P1 and P2 sale deeds in their favour. The petitioners' case is that because of a ban issued by the second respondent, the fourth respondent is refusing to register the documents._ _2. In the light of the principles laid down by this Court in_ _**Selvam v. State of Kerala [2010 (1) KLT 508]** , the registration cannot be declined by the fourth respondent acting upon the dictates of the second respondent. Therefore, the writ petition is disposed of directing the fourth respondent to accept the documents and take it up for registration in accordance with law. However, it is clarified that even if the documents are registered, the same shall be done without prejudice to any proceedings that may be initiated by respondents second and three. On the basis of registration, the revenue officials shall also effect transfer of registry. No costs.”_ Exts.P-4 to P-5 judgments in W.P.(C).Nos.11722/2018 and 41077/ 2017 are also on similar lines. 4. Sri.Saigi Jacob Palatty, learned Senior Govt. Pleader appearing for the official respondents would submit that the dictum laid down by the Division Bench of this Court in the judgment dated 21.1.2010 in W.A.No.2080/2009 in the case in _**Selvam v. State of Kerala**_ reported in 2010 (1) KLT 508, may not be applicable in all cases especially in view of the amendment that was subsequently made to the provisions of the Registration Act, whereby subsection 3 of Sec.71 of the Act was introduced from 13.9.2013. Section 71 including the sub-section 3 thereof, reads as follows: _**“Sec.71: Reasons for refusal to register to be recorded. -**_ _(1) Every Sub-Registrar refusing to register a document, except on the_ W.P.(C)21327/18 - : 4 :- _ground that the property to which it relates is not situate within his subdistrict, shall make an order of refusal and record his reasons for such order in his Book No.2, and endorse the words "registration refused" on the document; and, on application made by any person executing or claiming under the document, shall, without payment and unnecessary delay, give him a copy of the reasons so recorded._ _(2) No registering officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained, the document is directed to be registered._ _(3) No registering officer shall accept for registration any document involving transfer of property including contract for sale of immovable property belonging to or vested in the Government of Kerala or public sector undertakings operating in the State or local self Government institutions unless it is accompanied by a no objection certificate issued by an officer authorised by the State Government in this behalf.”_ 5. Going by the nature of the factual controversy in this Writ Petition and in view of the piecemeal permission earlier granted by the 3[rd] respondent as per proceedings No.TLB/2/92/TBA dated 30.11.1994, on the basis of which the petitioner could purchase the property as per Ext.P-1 sale deed, it cannot be said that the State Government authorities can raise a plausible objection that the land in question covered by Ext.P-1 sale deed is owned or vested in the State Government or any public sector entity or local authority as conceived in sub-section 3 of Sec.71 of the Registration Act. Therefore, though the dictum laid down by the Division Bench of this Court in _**Selvam's case**_ supra, may not apply in cases which are specifically covered by the provisions contained in sub-section 3 of Sec. 71, which was made effective with effect from 13.9.2013, it cannot W.P.(C)21327/18 - : 5 :- be said that the directions issued by this Court in Exts.P3 to P-5 judgments are in any manner legally unsustainable in the facts of this case. 6. The learned Senior Govt. Pleader appearing for the official respondents would also place reliance on Sec.120A of the Kerala Land Reforms Act, 1963. The said Sec.120A of the KLR Act has been inserted by Amendment Act, 1972, with effect from 2.11.1972, which reads as follows: _**“Sec.120A: Registering officer not to register in certain cases.-** Notwithstanding anything contained in the Registration Act, 1908 (Central Act 16 of 1908), where the District Collector or any other officer authorised by the Government in this behalf informs the registering officer in writing that there are reasonable grounds to believe that any document relating to transfer of land which may be presented before him for registration is intended to defeat the provisions of this Act, such registering officer shall not register such document until the District Collector or the officer so authorised, as the case may be, informs the registering officer that the transfer is not intended to defeat the provisions of this Act.”_ 7. It has been held by this Court in the judgment in _**Devassia v. Sub Registrar**_ reported in 2015 (1) KLT 825, para 13, that Sec.120A of the KLR Act is an enabling provision and it is not a pre-requisite for registration of any document and that the District Collector or any other Officer authorised by the Government, has to satisfy based on materials that, transfer of any particular land is being transferred in order to defeat the provisions of the Act. That therefore, such satisfaction has to be arrived at by the competent W.P.(C)21327/18 - : 6 :- authority concerned having regard to the subject of each transfer. As there was no record before this Court in that case that there was such satisfaction either on the part of the District Collector or by the authorised Officer under the Government that the impugned transaction was intended to defeat the provisions of the KLR Act, this Court held that resort to Sec.120A of the KLR Act cannot be the legal basis for denying the registration. In the instant case also, indisputably, the competent authority concerned including the District Collector or any other officer authorised by the Government in that regard, do not have any case that they have adequate materials on the basis of which, they have arrived at a conclusion that the present transfer sought to be made by the petitioner herein is intended to defeat the provisions of the KLR Act. Therefore, reliance placed on Sec. 120A of the KLR Act also cannot be the legal basis for denying the plea for registration in the instant case as well. 8. Therefore, this Court is in respectful concurrence with the view taken by this Court in Exts.P-3 to P-5 judgments and accordingly, this Court is proposing to issue the same directions. In that view of the matter, it is ordered that the 4[th] respondent Sub Registrar, Taliparamba, shall take up for registration the sale deed in respect of the above transaction in question involving the property W.P.(C)21327/18 - : 7 :- covered by Ext.P-1 sale deed and consider the same for registration in accordance with law and will take steps to register the said document if it is otherwise in order. The present objection, which has now been overruled by this Court, cannot be the basis for rejecting the request for registration. However, it is clarified even if the document/s is/are registered, the same shall be done without prejudice to any proceedings that may be initiated by respondents 2 and 3. On the basis of the said registration, the Revenue officials concerned shall also effect the transfer of registry. The petitioner may produce a certified copy of this judgment before the 4[th] respondent Sub Registrar for necessary information and action. The office of the Advocate General will forward certified copies of the judgment to all the respondents concerned. With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of. Sd/sdk+ **ALEXANDER THOMAS, JUDGE** ///True Copy/// P.S. to Judge